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TMI Blog2010 (1) TMI 1169X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment tax out of amount lying in PD account. 2. We have heard the parties. The learned counsel for the assessee, Mr. Anil Goyal, chartered accountant argued and submitted with regard to ground No. 2 that the order under s. 143(3) was passed in the case of the assessee on 31st Dec., 2008 and the appeal against the order was to be filed with the learned CIT(A) within 30 days from that date. Since the appeal could not be filed within that time period, the assessee filed an application with the learned CIT(A) along with an affidavit and copies filed on record for condonation of the delay in filing the appeal. The assessee filed appeal in prescribed Form No. 35 on 12th Aug., 2009 along with challans for deposit of prescribed fee of ₹ 1,000. This application for condonation of delay was not accepted by the learned CIT(A) and the appeal was dismissed by him in limine being barred by limitation without going into the merits of the case. He further submitted the AO [sic-CIT(A)] has erred in dismissing the appeal of the assessee in limine without going into the merits of the case even though the assessee had filed a petition dt. 4th Aug., 2009 for condonation of delay and also file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal should be condoned in a case wherein explanation given by assessee is found to be satisfactory. The various cases cited and relied upon by the learned CIT(A) in his order are from various High Courts which cannot overrule the binding judgment of Hon'ble Supreme Court as mentioned above. 3.2 As regards the legal ground arising out of this ground of appeal to be adjudicated by the Hon'ble Bench is as under : Whether the AO is empowered to charge interest under ss. 234B and 234C without paying any attention to the request of the assessee to adjust the amount of advance tax instalments and self-assessment tax out of his own money lying in PD account with the IT Department. Since this is a legal ground, it can be raised before the Hon'ble Tribunal at any stage of appeal. Reliance is placed on the following decisions of the Hon'ble apex Court. (i) National Thermal Power Co. Ltd. vs. CIT (1999) 157 CTR (SC) 249: (1998) 229 ITR 383(SC) held Tribunal has the right to decide the question raised before it for the first time. (ii) Jute Corporation of India Ltd. vs. CIT (1990) 88 CTR (SC) 66: (1991) 187 ITR 688(SC) held an appellate authority has all the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order under s. 154, dt. 21st March, 2007 (copy at paper book No. 15) was received by the assessee in which following interest was charged : Interest under s. 234B ₹ 5,49,468 Interest under s. 234C ₹ 3,789 Total demand raised against the assessee was ₹ 51,32,160 without giving any credit for the advance tax instalment and self-assessment tax. 4.1 Against this order, application under s. 154 dt. 29th March, 2007 (paper book 16) for rectification of the mistakes and for deletion of the interest charged under ss. 234B and 234C was filed by the assessee. This application is still pending with the AO. Subsequently assessment was completed under s. 143(3) and in the tax computation sheet dt. 29th Dec., 2008 (copy on record) for assessment under s. 143(3) the assessee was informed that following interest has been charged : Interest under s. 234B ₹ 6,55,618 Interest under s. 234C ₹ 1,69,916 In this computation sheet dt. 29th Dec., 2008 for the first time, the assessee ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .e., (i) CIT vs. Kesr Kimam Karyalaya/CIT vs. K.K. Marketing (2005) 196 CTR (Del) 611 : (2005) 278 ITR 596 (Del); Hon'ble Delhi High Court held that since there was nothing to prohibit the assessee from making such a request, the cash amount ought to have been adjusted as prayed . Similar view has been taken by the following Benches of Tribunal on which the assessee places his reliance. (ii) Satya Prakash Sharma vs. Asstt. CIT (2009) 20 DTR (Del)(Trib) 561; (iii) Asstt. CIT vs. Raghu Nandan Lal Ors. (2003) 79 TTJ (Chd)192. In view of above facts and the decided case laws in favour of the assessee it is submitted that this ground of appeal may kindly be decided in favour of the assessee and huge interest charged under ss. 234B and 234C may kindly be deleted. 5. The learned Departmental Representative on the other hand opposed the arguments made by the learned Authorised Representative and further opposed the admission of legal ground which was raised by learned Authorised Representative. 6. We have perused the facts of the case and heard the parties at length. There appears to be a sufficient cause in not presenting the appeal in time before the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . After hearing the parties and perusal of the facts, we are of the view that the ground raised by the assessee is arising from the facts on record in the assessment proceedings and therefore such a question is necessary to be decided to correctly assess the liability of the assessee. The reliance has been placed on the decision of Hon'ble Supreme Court of India in the case of National Thermal Power Co. Ltd. vs. CIT (1999) 157 CTR (SC) 249 : (1998) 229 ITR 383 (SC) headnotes of the said decision are reproduced for the sake of clarity as under : Under s. 254 of the IT Act, 1961, the Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. The power of the Tribunal in dealing with appeals is thus expressed in the widest possible terms. The purpose of the assessment proceedings before the taxing authorities is to assess correctly the tax liability of an assessee in accordance with law. If, for example, as a result of a judicial decision given while the appeal is pending before the Tribunal, it is found that a non-taxable item is taxed or a permissible deduction is denied, there is no reason why the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicating the facts and evidence on record and mechanically included ₹ 22,84,994 in the total income. The assessee contended that it learnt that the interest earned before the setting up of business was not taxable as income and it went to reduce the capital cost of the plant and hence included the above three grounds in its grounds of appeal. However, the Tribunal declined to entertain the three additional grounds. The Tribunal directly referred to the Supreme Court the question whether where, on the facts found by the IT authorities, a question of law arose (although not raised before the authorities) which bore on the tax liability of the assessee the Tribunal had jurisdiction to examine the same : Held, that the Tribunal had jurisdiction to examine a question of law which arose from the facts as found by the IT authorities and having a bearing on the tax liability of the assessee. (Matter remanded to Tribunal for consideration of new grounds raised by the assessee on the merits). 8. In view of the decision of Hon'ble Supreme Court of India in the case of National Thermal Power Co. Ltd. (supra) and other decisions relied upon, the additional ground raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 143(1)(a) of the IT Act, 1961 it was held that the assessee were entitled to a refund of ₹ 48,78,295 as against the advance tax liability of ₹ 48,55,000. The AO charged interest from both the assessee under ss. 234B and 234C. The Tribunal deleted the interest. On appeal to the High Court. Held, that there was no dispute that the offer for adjustment of the seized cash was made by the assessee before the advance tax liability became due. Insofar as the adjustment of the cash seized against the liability of the firm is concerned, the Tribunal rightly held that there is no difference between a firm and its partners. The partners constitute the firm and they are liable to make good any demand of taxes on behalf of the firm. The partners of the concerned assessee had categorically prayed that the cash seized from their premises, which also happened to be the premises of the firm, should be adjusted against the advance tax liability of the firm/assessee. Such a request could have been made by the partners to bind the assessee and there could not have been any ground for rejecting such a request. The Revenue accepted the return filed by the assessee and in fact it was f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore being the identical issues in the present appeal, following our own order in assessee's own case for the asst. yr. 2006-07 (supra), ground Nos. 2 and 3 of the assessee are allowed and our decision in assessee's own case for the asst. yr. 2006-07 shall be applied in the present case. In the circumstances and facts of the case the AO is directed to adjust the advance tax liability as prayed by the assessee on 12th Sept., 2006, 13th Dec., 2006 and 12th March, 2007 and charge the interest, if any. As regards the charging of interest under s. 234A, this being a legal ground is also admitted and the interest under s. 234A can be charged if the return is furnished after the due date. In the present case, as stated the return was filed on 29th Oct., 2007 and being auditable case the return was due on 31st Oct., 2007 and therefore no interest under s. 234A can be charged. In the circumstances and facts of the case the grounds raised by the assessee and the additional grounds are allowed. 14. Ground No. 4 of the assessee is general in nature and therefore does not require any adjudication. 15. In the result the appeal of the assessee in ITA Nos. 778 and 779/Jp/2009 are pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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